COMMENTS ON INTERCEPTION AND MONITORING BILL, 2001
27 AUGUST 2001
1.1 Prior to 12 January 2001, the Interception and Monitoring Prohibition Act, 1992(Act No. 127 of 1992), made provision for the following law enforcement functionaries to apply for the interception and monitoring of certain postal articles, communications and conversations in terms of section 3 (1) (b) (i) or (ii) or section 3(4):
(a) An officer in the South African Police Service.
(b) An officer in the South African National Defence Force.
(c) A member of the Intelligence Services or Agency.
1.2 On 12 January 2001 the National Prosecuting Authority Amendment Act, 2000(Act No.61 of 2000), came into operation. The Amendment Act, amongst others, provides for the establishment of the Directorate of Special Operations (DSO) with the aim to-
(a) investigate, and to carry out any functions incidental to investigations relating to offences or any criminal or unlawful activities committed in an organised fashion;
(b) to gather, keep and analyse information relating to such offences and unlawful activities; and
(c) where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings relating to such offences and unlawful activities.
1.3 In view of the establishment of the above Investigating Directorate, it was necessary to amend the Interception and Monitoring Prohibition Act, 1992, so as to enable the special investigators of the DSO to intercept and monitor certain postal articles, communications and conversations.
2. CONSTITUTIONALITY AND PRINCIPLE ISSUES
2.1 The enactment of legislation to provide for interception and monitoring may violate some fundamental constitutional rights, including the following:
(a) The right to privacy, in particular the right not to have the privacy of your communications infringed(section 14(d) of the Constitution).
(b) The right to human dignity(section 10 of the Constitution).
(c) The right to freedom of expression(section 16(1) of the Constitution).
2.2 It is accepted that the interception or monitoring of communications constitutes a violation of a person's right to privacy. However, the opinion is held that the right to privacy can be limited by way of the limitation clause in the Constitution. Section 36(1) of the Constitution provides as follows:
"(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.".
2.3 In Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (1) SACR 105 (C), on page 124, paragraph 70, the High Court held that "(n)one of these fundamental rights may be regarded as absolute and unconditional. Section 36 of the Constitution provides expressly for the limitation of any such right".
2.4 In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice andOthers, 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) the Constitutional Court held that the approach to limitations established by Chaskalson P in S v Makwanyane and Another, 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paragraph , applies to cases heard under the 1996 Constitution, notwithstanding the changed language of the limitation clause. The approach in Makwanyane's case was set out as follows:
"The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of s 33(1). The fact that different rights have different implications for democracy and, in the case of our Constitution, for 'an open and democratic society based on freedom and equality', means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process the relevant considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.". (Our emphasis)
2.5 Therefore, in applying section 36 to a provision providing for interception and monitoring, the following requirements are important:
(a) The nature of the right
In S v Manamela and Others 2000 (1) SACR 414 (CC) the Constitutional Court held on page 442, paragraph 69, as follows:
"The level of justification required to warrant a limitation upon a right depends on the extent of the limitation. The more invasive the infringement, the more powerful the justification must be. It is important to recognise that not every reverse onus offends the presumption of innocence in the same manner or to the same extent. To assess the extent of the limitation it is necessary to examine carefully thelegislative provision in question.". (Our emphasis)
In examining the provisions of the Bill, the following features of the Bill are important:
(i) The general rule is that interception and monitoring of communications areprohibited(clause 2(1)).
(ii) The Bill contains three exceptions to the general rule. In considering these exceptions, one should take into account that every person and the community as a whole have the right to be protected by the State against perpetrators committing serious crime. At the same time one should take into account every person's right to privacy. In studying the provisions of the Bill, the opinion is held that the provisions providing for the exceptions are of such a nature that they strive to strike a balance between the interests of the community and the seriousness of crime, on the one hand, and the individual or a service provider, on the other.The exceptions to the general rule are the following:
(aa) Any person may monitor any communication by means of a monitoring device where such person is a party to thatcommunication or where one of the parties to the communication has consented to such monitoring(clause 2(2)).
(bb) Any person who is a party to a communication may, in the course ofthe carrying on of any business and without the knowledge or permission of the other party to that communication, intercept or monitor the communication for the purpose of monitoring or keeping a record of communications in respect of transactions entered into in the course of that business or communications relating to that business(clause 2(3)).
(cc) An independent functionary, namely a judge may, upon an application referred to in section 3, direct that a postal article or a communication be intercepted and monitored (clause(4).
(iii) A judge may only direct such interception and monitoring if the following strict requirements have been met:
(aa) There must be an application in terms of clause 4. The application must be in writing and must contain fullparticulars of all the facts and circumstances alleged by the officer or member concerned in support of his or her application and the application must comply with the directives issued jointly by the respective Judges-President of the High Courts(clause 12(1)).
(bb) Only the functionaries referred to in paragraph 1.1 above, if authorised by very senior officials, may apply for a direction in terms of clause 4.
(cc) A judge may only issue a direction if he or she is satisfied, on the facts alleged in an application referred to in section 3, that there are reasonable grounds to believe that a serious offence has been or is being or will probably be committed and cannot be investigated in another appropriate manner or the securityor other compelling national interests of the Republic arethreatened or that the gathering of information concerning a threat to the security or other compelling national interests of the Republic is necessary(clause 4(2)).
(dd) A direction may be issued for a period not exceeding three months at a time(clause 4(3)).
In Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (1) SACR 105 (C), the Cape Provincial Division of the High Court considered the provisions contained in the Proceeds of Crime Act, 1996(Act No. 76 of 1996), relating to a restraint order. On page 130, paragraph 90, the Court remarked as follows:
"...[M]easures such as restraint and confiscation, although encroaching upon protected fundamental rights, are both equitably and morally justified. I am of the view that such remedies are indispensable in any community priding itself on being a proponent of justice, fairness, reasonableness, good faith and good (public) morals. Public policy indeed dictates the need to establish and develop measures and remedies of this nature with a view to resisting the ever-increasing criminal onslaught.".
The Court held that the limitations contained in the relevant provisions of the Act are no more far reaching than is reasonably necessary to provide for the recovery of the proceeds of crime and to prevent the use, abuse or dissipation thereof pending the proceedings against the suspected perpetrator of the crime. The limitations are accordingly reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking s 36(1) of the Constitution into account.
In S v Manamela and Others 2000 (3) SALR 1 (CC) the Constitutional Court held on page 17, paragraph 27, "(t)hat the effective prosecution of crime is a social objective of great significance which could, where appropriate, justify the infringement of fundamental rights.".
In view of the above, the opinion is held that the relevant provisions are of such a nature that they justify infringement of the right to privacy.
(b)The importance of the purpose of the limitation
In S v Manamela and Others 2000 (1) SACR 414 (CC) the Constitutional Court on page 447, paragraph 86, emphasised that "(i)t is important in this regard to denote precisely the area in which" the limitation operates to assist the State. In this regard we wish to emphasise the following factors:
(i) Law enforcement agencies are established to protect public safety which includes the protection of privacy and civil rights of individuals and corporations from abuse by other members of the community. It is equally important to protect the community as a whole. As technology develops and computers are used to collect and compile information, there is a growing concern for the protection of general community rights. Furthermore, the potential use of these technologies to facilitate crime is of growing concern to the Government and law enforcement agencies. Legislation is necessary to ensure that law enforcement is conducted in a way which accords with the general community ideals and expectations. It is therefore a requirement of legislation, and the legal system generally, to reflect and provide appropriate accountability to ensure adequate protection for the community.
(ii) After having considered-
(aa) legal developments across the world regarding the interception of communications, which include developments influenced by technology as well as financial considerations;
(bb) the challenges posed by new developments in relation to the investigation of crime, especially crime which transcends national borders;
(cc) provisions contained in the European Convention on Human Rights relating to a person's right to privacy and public authority's right to interfere with the exercise of an individual's right in certain circumstances;
(dd) the exemptions and restrictions set out by the European Parliament relating to the adoption by States of legislative measures to restrict the scope of the obligations and rights of an individual;
(ee) the protection of telecommunication data as set out by the European Community in its 1997 Directive;
(ff) the recommendations of the Working Party on the protection of individuals with regard to the processing of personal data as instituted by the European Council during 1995;
(gg) the High Court's observation in S v Naidoo and Another  1 All SA 189 on 213 regarding the constitutionality of the provisions of the present Interception and Monitoring Act, 1992; and
(hh) comparative legislation in other democratic countries,
the South African Law Commission, in paragraph 1.27 of its Report, remarks as follows:
"There is, in view of the factors set out above, a more compelling reason to review the Interception and Monitoring Prohibition Act, 1992, from a legal point of view. Telecommunications are being used more and more in the organizing and commissioning of crime, especially organized crime, heists and other serious violent crimes. Legal provision should be made to give law enforcement agencies the necessary tools to investigate such crimes as well as other concomitant crimes such as money-laundering. A review of the Act should ensure that the emphasis in the Act should be crime.".
We whole heartedly agree with this viewpoint of the South African Law Commission.
(iii) The following view has been expressed by the Australian Law Reform Commission:
"...the privacy interest is not an absolute one, other interests must be taken into account. Other legitimate social interests (for example the interest in protecting society from wrong-doers and criminals) must be respected.".
(iv) The National Prosecuting Authority supports the provision that an application(within the ranks of the DSO) to intercept and monitor should only be approved on the highest level, namely, by the Head of the DSO or an Investigating Director authorised thereto by him or her. The DSO will only apply for a direction where it is absolutely necessary and in accordance with the legal requirements. This is evident from our applications thus far. Since the commencement of the legislation allowing the DSO to apply for a direction, the DSO has submitted only five applications, three of which were for investigations in respect of drug dealing, one for armed robbery and fraud, and one for corruption and fraud. All five applications were approved.
(c) The nature and extent of the limitation
See paragraph (a) above under the heading "The nature of the right".
(d) The relation between the limitation and its purpose
In respect of this requirement one should weigh the scope of the infringement of privacy against the purpose, importance and effect of the proposed legislation. Taking into account the requirements and restrictions built into the legislation before the infringement is allowed, and the advantages of protecting the individual and the community as a whole, we are firmly of the view that the scale has tilted in favour of the community at large and consequently the enactment of the provisions.
(e) Less restrictive means to achieve the purpose
In S v Manamela and Others 2000 (1) SACR 414 (CC) the Constitutional Court remarked as follows on page 450, paragraph 94:
"It is clear that the question whether there are less restrictive means to achieve the government's purpose is an important part of the limitation analysis. However, it is as important to realise that this is only one of the considerations relevant to that analysis. It cannot be the only consideration. It will often be possible for a court to conceive of less restrictive means...".
In paragraphs 95 and 96 the Constitutional Court, amongst others, remarked as follows:
" The problem for the Court is to give meaning and effect to the factor of less restrictive means without unduly narrowing the range of policy choices available to the Legislature in a specific area. The Legislature when it chooses a particular provision does so not only with regard to constitutional rights, but also in the light of concerns relating to cost, practical implementation, the prioritisation of certain social demands and needs and the need to reconcile conflicting interests. The Constitution entrusts the task of legislation to the Legislature, because it is the appropriate institution to make these difficult policy choices. When a court seeks to attribute weight to the factor of 'less restrictive means' it should take care to avoid a result that annihilates the range of choice available to the Legislature. In particular, it should take care not to dictate to the Legislature unless it is satisfied that the mechanism chosen by the Legislature is incompatible with the Constitution.
 In our view, the question whether the purpose of a specific legislative provision can be achieved through less restrictive means requires a careful analysis of the purpose of the provision.".
3. PROPOSALS IN RESPECT OF SPECIFIC CLAUSES OF THE BILL
3.1 Clause 1: Definition of "serious offence"
3.1.1 In terms of clause 1 "serious offence", inter alia, means-
"(a) any offence mentioned in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), provided that-".
3.1.2 Although the rules of interpretation may be of assistance, the opinion is held that Schedule 1 to the Criminal Procedure Act, 1977(Act 51 of 1977), is outdated and a reference to that Schedule should be avoided. In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, 1999(1) SA 6 (CC), the Constitutional Court declared the offence of "sodomy", unconstitutional. Furthermore, serious common law offences such as extortion, defeating the ends of justice and perjury are not included in Schedule 1.
3.1.3 Furthermore, Schedule 1 to the Criminal Procedure Act, 1977, amongst others, contains the following offence:
"Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine.".
According to our case law this provision only refers to statutory offences and not common law offences. The opinion is therefore held that a reference to offences in Schedule 1 to the Criminal Procedure Act, 1977, creates the opportunity to intercept and monitor nearly all statutory offences, and some of these offences may not be regarded as "serious offences".
3.1.4 The opinion is held that a reference to Schedule 1 to the Prevention of Organized Crime Act, 1998(Act No. 121 of 1998), will be more appropriate, because the offences listed in that Schedule are more in line with the objects of the Bill. All the serious offences listed in Schedule 1 to the Criminal Procedure Act, 1977, except treason and sedition, are also listed in Schedule 1 to the Prevention of Organized Crime Act, 1998. However, Schedule 1 to the last-mentioned Act also lists the offences of extortion, defeating the ends of justice and perjury and the offences referred to in paragraphs (b), (d), (e) and (f) of the definition of "serious offence" as contained in the Bill. Treason and sedition are serious offences and should be included in the definition of "serious offence".
3.1.5 The inclusion of paragraph (e) does not make sense and is contradictory to paragraph (a). The offences of "murder", "culpable homicide" and "infliction of grievous bodily harm" are already listed in Schedule 1 of the Criminal Procedure Act, 1977, and the provisos in paragraph (a)(i), (ii) and (iii) are applicable to such offences. However, these provisos are not applicable to paragraph (e). There is in our opinion no logical reason why the provisos are only applicable to paragraph (a). It may be argued that the offences listed in paragraphs (b) to (g) are more serious in nature and are frequently committed in an organised fashion, but the same argument should then apply to various other offences listed in Schedule 1. We are reminded that interception and monitoring constitute a serious invasion of a person's right to privacy and should only be performed in respect of the most serious offences. The definition of "serious offence", together with the provisions of clause 4, forms the "engine" of the Bill and may have serious ramifications for the community at large. If the definition is therefore linked to an existing list of offences contained in other legislation, it is important to make sure that such a list contains serious offences and should not be subject to abuse.
3.1.6 In view of the above, the opinion is held that the Committee has two options. In the first instance Schedule 1 of the Prevention of Organized Crime Act, 1998, can be used as a basis. If so, the following definition of "serious offence" is proposed:
"'serious offence' means-
(a) any offence mentioned in Schedule 1 to the Prevention of Organized Crime Act, 1998(Act No. 121 of 1998);
(b) any specified offence as defined in section 1 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); and
(c) treason, sedition or any other offence threatening the security or other compelling national interest of the Republic,
including any conspiracy, incitement or attempt to commit any of the above-mentioned offences: Provided that-
(i) ....(repeat provisos);
Alternatively, a separate list should be drafted in terms of which only serious offences relating to the objects of interception and monitoring are listed. In the Canadian legislation, for example, serious offences are listed in a separate list. We can assist the Committee in drafting such a list.
3.2 Clause 2(1): Interception and monitoring
3.2.1 In terms of clause 2(1)(a) and (b) "no person" may intercept or monitor a communication. However, subsections (2) and (3) and section 4 provides for exceptions to this general prohibition, namely-
(a) where a person is a party to the communication or where a party consents to such monitoring;
(b) where a party to the communication in the course of the carrying on of any business, under certain circumstances intercepts or monitors the communication; and
(c) where a judge directs such interception or monitoring in terms of clause 4.
3.2.2 From the above provisions it seems clear that any other interception or monitoring of a communication will constitute a contravention of clause 2(1). However, there are those who argue that the wording of clause 2(3) is vague. Clause 2(3) seems only to allow for the interception and monitoring of communications between business organisations or institutions and their clients and not between an employer and an employee. The counter argument is that the Bill does not specifically address the judgements in Protea Technology Ltd and Another v Wainer and Others 1997 (9) BCLR 1225 (W) and S v Kidson 1999(1) SACR 338 (W), and that the ratio of these judgments will, in spite of the new provisions, allow a private person, for example an employer, to intercept and monitor communications between his or her employees or any other person.
3.2.3 If employees are undermining the business of their employer and interception and monitoring are the only means to protect the business, it is understandable that the employer should be justified in having resource to the interception and monitoring of an employee's conversations. However, the opinion is held that the Bill does not specifically provide for such interception and monitoring and should be amended to provide for a further exception to the general prohibition. Such a provision will simultaneously exclude the interpretation that the Bill does not prohibit private interception and monitoring. In this regard the Committee may consider similar legislation in the UK which provides for the interception and monitoring of communications between employer and employee.
3.3 Clause 6(2): Payment of remuneration to service provider
3.3.1 Clause 6(2) provides, amongst others, that under certain circumstances remuneration agreed upon by the service provider and the "head of the Directorate" must be paid to that service provider.
3.3.2 In terms of section 36(3A) of the National Prosecuting Authority Act, 1998, the Chief Executive Officer of the DSO is in charge of and responsible for the finances of the DSO. The Director-General: Justice has also delegated his powers, duties and functions relating to the finances of the National Prosecuting Authority to the CEO of the DSO. It is therefore recommended that clause 6(2) should be amended in order to provide that the "head of the Directorate"must exercise this power "after consultation with the CEO".
3.4 Clause 13(1): Use of information in criminal proceedings
3.4.1 Clause 13(1) provides as follows:
"The use of any information obtained by the application of this Act, or any similar Act in another country, as evidence in any prosecution, is subject to the decision of the head of the Directorate, the Director of Public Prosecutions or an Investigating Director contemplated in the National Prosecuting Authority Act,1998(Act No. 32 of 1998).".
3.4.2 The clause refers to the use of information "as evidence in any prosecution". In terms of section 7(2) of the National Prosecuting Authority Act,1998, the head of the DSO shall perform his or her powers, duties and functions subject to the control and directions of the National Director. Furthermore, section 22(1) of the Act provides that the National Director, as the head of the prosecuting authority, shall have authority over the exercising of all the powers, and the performance of all the duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the Constitution, this Act or any other law. Section 71 of the Prevention of Organized Crime Act, 1998(Act No. 121 of 1998), contains a similar provision in terms of which no person may without the written permission of the National Director disclose to any other person any confidential information, registers, records, documents or electronic data which came to his or her knowledge in the performance of his or her functions in terms of that Act
3.4.3 It is therefore recommended that subsection (1) be amended as follows:
(1) The use of any information obtained by the application of this Act, or any similar Act in another country, as evidence in any prosecution, is subject to the decision of the National Director, the head of the Directorate, the Director of Public Prosecutions or an Investigating Director contemplated in the National Prosecuting Authority Act,1998(Act No. 32 of 1998).".
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS